자기앞수표 지급은행의 주의의무 - 대법원 2002. 2. 26. 선고 2000다71494, 71500 판결의 비판적 검토 -

In the case where the plaintiff’s employee embezzled his or her check, withdrew cash from the defendant bank, and ran away, the Supreme Court vacated the lower court’s judgment by acknowledging the responsibility of the defendant bank on the basis of the duty of care, not the payment immunity provision of the Check Act. In principle, the Note Act and the Check Act permit the holder of a negotiable instrument to enforce it. Checks are used as a means of payment, and in particular, cashier’s checks issued by banks are used as a means of settlement, like cash. The Check Act explicitly imposes on the paying bank only the duty to investigate the endorsement sequence, and unlike the Note Act, there is no requirement that there be no fraud and gross negligence. This may have taken into account the functional difference between notes and checks. However, even if it is applied by analogy to a check, it does not impose the duty of active investigation. Fraud is a case in which the presenter is an unauthorized person and the evidence to prove it has been secured, and gross negligence is corresponding thereto. Notes and checks are circulated and the payor cannot know the process. The reason for the relaxation of the immunity requirement for the payor of the check is also to ensure the right of the holder to be paid promptly. There is no contractual relationship between the payor bank (= issuing bank) of the cashier’s check and the holder that creates a duty of care. The client who applied the issue of the cashier’s check only has the right as the bearer, and even if the check is lost or embezzled, it can be exercised only by proving it and restoring possession. The Supreme Court’s imposition of the duty of care on the paying bank is not only groundless, but also makes the provision of the Check Act meaningless. And even if the Supreme Court’s judgment is about the gross negligence of the paying bank, this does not reflect the reality of the transaction. Cashier's checks are used in various transactional relationships. Also, if a large amount of cash is needed for payment of wages at the construction site, a special request may be made by mobilizing an acquaintance to the local bank. The Supreme Court’s perception of this as very unusual does not match reality. The fraud and gross negligence of the paying bank shall be judged on the basis of an ordinary bank clerk who must verify the holder by limited means in a limited time. He or she should not be held responsible by hind-sight. Imposing an excessive inspection and verification obligation on the paying bank of the cashier's check will impair its payment and settlement function. The U.S. Uniform Commercial Code (UCC) specifically provides that in case an employee misappropriates negotiable instruments, in principle the employer is responsible for it. However, if the payor neglects the ordinary care, he/she shall share the responsibility. On the order hand, the UCC provides that even if there is other person claiming rights, the payor is permitted to pay to the holder. In cases, such as receiving a guarantee, payor is not exempt from liability. But this exception does not apply to cashier’s check. It is worthy of reference in the applying of our law. In this case, the scope of the employee’s agency authority, apparent authority and abuse of agency power may also become issues. In case the paying bank is not exempt from liability, it should be discussed whether the payment is invalid or whether damages are shared through tort liability.